NFL, DMCA, and Fair Use

CommuniK Commentary by K. Matthew Dames

Last winter, Northeastern University School of Law professor Wendy Seltzer tested the application, limits, (and to some degree) silliness of the DMCA’s takedown procedure. In early February, she posted on YouTube a 33-second snippet of the NFL’s copyright warning, which she recorded from a Fox television broadcast of the Super Bowl. Seltzer’s snippet ended just as a group of Chicago Bears converged on a kick from Indianapolis Colts place kicker Adam Viniateri to begin the second half of Super Bowl XLI. (Note: Seltzer was a visiting professor at Brooklyn Law School when these events occurred.)

As we have come to know, the NFL filed a DMCA takedown notice with YouTube, alleging Seltzer’s post infringed the League’s copyright. The filing set in motion a series of actions (which Seltzer called “the DMCA dance”) in which the video was alternately removed, replaced, removed again, and replaced again. The Seltzer-NFL battle received coverage in the mainstream media, including in The Wall Street Journal.

Further, Seltzer’s DMCA demonstration likely was the event that led the Computer & Communications Industry Association to launch its “Defend Fair Use” campaign. This campaign includes filing a complaint (.pdf) before the Federal Trade Commission that alleges that copyright warnings from the NFL and Major League Baseball constitute “unfair and deceptive trade practices.”

Fast forward to today, the Friday before NFL’s Week 1. USA Today has published a front page story that outlines the NFL’s attempts to exert tighter control over media footage. The league’s changes include introducing a rule that limits to 45 seconds the amount of footage that news organizations can show on their Web sites.

Of course, the news organizations are all in a tizzy about this, even though one could ask if competition and ratings are so important, why does any station share any footage with another outlet? It seems the sharing arrangement has developed as an industry custom, not as a law. Therefore, the NFL’s move to exercise tighter control over its property arguably is consistent with the nature of commercial competition, even though it’s inconsistent with industry custom.

We think the NFL’s 45-second policy has copyright implications as well, even though it’s anyone’s guess whether the League’s tiff with Professor Seltzer was part of the reason it announced the policy. In short, we see the 45-second rule as NFL’s attempt to codify a “fair use” guideline for media organizations. The current 45-second policy is less time than the previous policy, which allowed “reasonable” posts to new Web sites. The 45-second policy, though, does introduce some level of certainty.

Now, we have a few rhetorical questions for The Ligg (as Tony Kornheiser calls it):

  1. Are you willing to allow other members of the public to post 45 seconds of footage to their Web sites? (After all, “fair use” is not limited to news organizations.)
  2. Are you willing to allow members of the public to post 45 seconds of footage to any site if such footage reasonably qualifies as “fair use”?
  3. What will happen if news organizations post more than 45 seconds of footage? (After all, “fair use” isn’t necessarily limited to 45 seconds.) Will the league issue a DMCA takedown against the news organization’s Web site?
  4. By allowing news organizations to post 45 seconds of footage, are you suggesting that the NFL does not recognize that other applications or interpretations of fair use do not exist?
  5. Is the NFL’s policy that any online entity, regardless of ownership or purpose, that fails to follow the 45-second rule for news Web sites is subject to a DMCA takedown?

If anyone has NFL press office contacts, Copycense would be interested in sending these questions along to see if we can get some answers.

See also:
Michael McCarthy. NFL’s Bold Steps in News Blur Media Boundaries. Sept. 7, 2007.

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Written by sesomedia

09/07/2007 at 08:00

Posted in Uncategorized

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